Citation Nr: 0727973
Decision Date: 09/07/07 Archive Date: 09/14/07
DOCKET NO. 04-23 019 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York
THE ISSUES
1. Entitlement to an initial, compensable rating for chronic
sinusitis.
2. Entitlement to an initial, compensable rating for
hemorrhoids.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Vavrina, Counsel
INTRODUCTION
The veteran served on active duty from April 1948 to April
1952, and from July 1955 to August 1971.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a December 2002 rating decision in
which the RO, inter alia, granted service connection and
assigned separate 0 percent (noncompensable) ratings for
chronic sinusitis and for hemorrhoids, each effective June
21, 2002. In that decision, the RO also awarded service
connection and assigned separate noncompensable ratings for
hypertension and for coronary artery disease, each effective
July 9, 2002. In March 2003, the veteran filed a notice of
disagreement (NOD) with regard to the initial ratings for all
four disabilities. A statement of the case (SOC) was issued
in April 2004. By rating decision issued the same month, the
RO assigned a separate initial 10 percent rating, each, for
hypertension and for coronary artery disease, effective June
21, 2002, and continued the initial noncompensable ratings
for chronic sinusitis and for hemorrhoids. The veteran filed
a substantive appeal (via a VA Form 9, Appeal to the Board of
Veterans' Appeals) in June 2004. In an accompanying VA Form
21-4138, the veteran stated that the initial 10 percent
ratings for hypertension and coronary artery disease
satisfied his appeal with regard to those two issues but he
wished to pursue his appeal with regard to higher ratings for
chronic sinusitis and hemorrhoids. As such, the only issues
remaining on appeal those set forth on the title page. In
November 2004, the RO issued a supplemental SOC (SSOC)
reflecting the continued denial of the claims remaining on
appeal.
Because each claim on appeal involves a request for a higher
initial rating following the grant of service connection, the
Board has characterized these claims in light of Fenderson v.
West, 12 Vet. App. 119, 126 (1999) (distinguishing initial
rating claims from claims for increased ratings for already
service-connected disability).
For the reasons expressed below, the claims on appeal are
being remanded to the RO via the Appeals Management Center
(AMC) in Washington, DC. VA will notify the veteran when
further action, on his part, is required.
As a final preliminary matter, the Board notes that, in a
July 2004 VA Form 21-4138, the veteran raised the issue of
entitlement to service connection for cataracts, claimed as
secondary to his service-connected Type II diabetes mellitus.
As this issue has not been adjudicated by the RO, it is not
properly before the Board; hence, it is referred to the RO
for appropriate action.
REMAND
The Board's review of the claims file reveals that additional
development of the claims remaining on appeal is warranted.
In his substantive appeal, the veteran contends that his
sinusitis and hemorrhoids are worse than reflected by the
assigned noncompensable ratings, noting that both conditions
are chronic, that his hemorrhoids are thrombotic and that he
does not always go to the doctor but tries to treat himself
for both disabilities. Moreover, in a September 2005 VA Form
646, the veteran's representative noted that the veteran was
last afforded a VA examination in 2002 and that he should be
given another examination to determine the severity of both
disabilities.
The veteran's post-service medical records reflect that the
veteran has been treated on many occasions for rectal
bleeding, constipation, sinus congestion, post-nasal drip,
headaches, and upper respiratory infections. Moreover, an
October 2001 private treatment record reveals that Dr. L. had
performed a colonoscopy and had removed a polyp.
The above-noted medical findings and statements suggest that
the veteran's service-connected sinusitis and hemorrhoids may
have increased in severity since the November 2002 VA
examinations. Hence, another examination for these
disabilities is warranted to obtain more contemporaneous
clinical findings.
Accordingly, the RO should arrange for the veteran to undergo
VA ear, nose and throat (ENT) and rectum and anus
examination(s), by (a) physician(s) at an appropriate VA
medical facility. The veteran is hereby notified that
failure to report to any such scheduled examination, without
good cause, may result in a denial of the claims for higher
initial ratings (as consideration of the original claim(s)
will be based on evidence of record). See 38 C.F.R. § 3.655
(2006). Examples of good cause include, but are not limited
to, the illness or hospitalization of the claimant and death
of an immediate family member. If the veteran fails to
report to any scheduled examination, the RO should obtain and
associate with the claims file (a) copy(ies) of the notice(s)
of the examination sent to him by the pertinent VA medical
facility.
Prior to arranging for the veteran to undergo further
examination, the RO should obtain and associate with the
claims file all outstanding VA medical records. The claims
file currently includes treatment records from the Albany VA
Medical Center (VAMC) and the Plattsburgh VA outpatient
clinic dated from October 30, 1999 to October 28, 2004. The
Board emphasizes that records generated by VA facilities that
may have an impact on the adjudication of a claim are
considered constructively in the possession of VA
adjudicators during the consideration of a claim, regardless
of whether those records are physically on file. See Dunn v.
West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2
Vet. App. 611, 613 (1992). Hence, the RO must obtain all
outstanding pertinent medical records, both inpatient and
outpatient, from the Albany VAMC and the Plattsburgh VA
outpatient clinic following the procedures prescribed in
38 C.F.R. § 3.159(c) (2006) as regards requests for records
from Federal facilities.
Further, to ensure that all due process requirements are met,
the RO should give the veteran another opportunity to present
information and/or evidence pertinent to either or both
claims remaining on appeal. The RO's notice letter to the
veteran should explain that he has a full one-year period for
response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see
38 U.S.C.A. § 5103(b)(3) (West Supp. 2006) (amending the
relevant statute to clarify that VA may make a decision on a
claim before the expiration of the one-year notice period).
The RO should also invite the veteran to submit all evidence
in his possession, and ensure that its notice to the
appellant meets the requirements of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006)-particularly as regards
disability ratings and effective dates-as appropriate.
The Board points out that the evidence of record shows that
the veteran continues to be treated by various private
physicians. When VA is put on notice of the existence of
private medical records, VA must attempt to obtain those
records before proceeding with the appeal. See Lind v.
Principi, 3 Vet. App. 493, 494 (1992); Murincsak v.
Derwinski, 2 Vet. App. 363 (1992). Hence, in its notice
letter, the RO should request that the veteran provide
authorization to enable it to obtain identified private
medical records, to include a copy of records from Dr. L.,
who performed the most recent colonoscopy and removed a
polyp, and from Dr. J. DeL. of the Apple Country Family
Physicians.
After providing the appropriate notice, the RO should attempt
to obtain any additional evidence for which the veteran
provides sufficient information, and, if needed,
authorization, following the current procedures prescribed in
38 C.F.R.
§ 3.159 (2006).
The actions identified herein are consistent with the duties
to notify and assist imposed by the Veterans Claims
Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103,
5103A (West 2002); 38 C.F.R. § 3.159 (2006). However,
identification of specific actions requested on remand does
not relieve the RO of the responsibility to ensure full VCAA
compliance. Hence, in addition to the actions requested
above, the RO should also undertake any other development or
notification action deemed warranted by the VCAA prior to
adjudicating the claim. The RO's adjudication of the claims
should include consideration of all evidence added to the
record since the RO's last adjudication of the claims-to
include, for the sake of efficiency, that submitted in
February 2006 (notwithstanding the waiver of RO jurisdiction
of such evidence). The RO should also document its continued
consideration of whether "staged rating" (assignment of
different ratings for distinct periods of time, consistent
with the facts found) pursuant to Fenderson decision, cited
to above, is warranted.
Accordingly, these matters are hereby REMANDED to the RO, via
the AMC, for the following actions:
1. The RO should obtain from the Albany
VAMC and the Plattsburgh VA outpatient
clinic all outstanding pertinent records
of evaluation and/or treatment for sinus
problems and/or hemorrhoids, both
inpatient and outpatient, from October
2004 to the present. The RO must follow
the procedures set forth in 38 C.F.R.
§ 3.159(c) as regards requesting records
from Federal facilities. All records
and/or responses received should be
associated with the claims file.
2. The RO should send to the veteran and
his representative a letter requesting
that the veteran provide sufficient
information, and if necessary,
authorization to enable it to obtain any
additional evidence pertinent to either
or both claims on appeal that is not
currently of record. The RO should
specifically request that the veteran
provide authorization to enable it to
obtain all outstanding pertinent records
from Drs. Ludwig and DeLucas of the Apple
Country Family Physicians.
The RO should invite the veteran to
submit all pertinent evidence in his
possession, and explain the type of
evidence that is his ultimate
responsibility to submit. The RO should
ensure that its notice meets the
requirements of Dingess/Hartman (cited to
above)-particularly as regards
disability ratings and effective dates-
as appropriate.
The RO's letter should also clearly
explain to the veteran that he has a full
one-year period to respond (although VA
may decide the claims within the one-year
period).
3. If the veteran responds, the RO
should assist him in obtaining any
additional evidence identified by
following the current procedures set
forth in 38 C.F.R.
§ 3.159. All records/responses received
should be associated with the claims
file. If any records sought are not
obtained, the RO should notify him and
his representative of the records that
were not obtained, explain the efforts
taken to obtain them, and describe
further action to be taken.
4. After all available records and/or
responses from each contacted entity are
associated with the claims file, or a
reasonable time period for the veteran's
response has expired, the RO should
arrange for the veteran to undergo VA ENT
and rectum and anus examination(s), by
(a) physician(s), at an appropriate VA
medical facility, to obtain information
as to the extent and degree of severity
of his sinusitis and hemorrhoids. The
entire claims file must be made available
to each physician designated to examine
the veteran, and the examination
report(s) should include discussion of
the veteran's documented medical history
and assertions. All appropriate tests
and studies, to include x-rays, if deemed
warranted, should be accomplished (with
all findings made available to the
physician(s) prior to completion of the
report), and all clinical findings should
be reported in detail. Each examiner
should set forth all examination findings
and the complete rationale for the
conclusions reached in a printed
(typewritten) report.
The ENT examiner should provide specific
clinical findings as to whether the
veteran's sinusitis is manifested by: (a)
one or two incapacitating episodes per
year of sinusitis requiring prolonged
(lasting four to six weeks) antibiotic
treatment, or; three to six non-
incapacitating episodes per year of
sinusitis characterized by headaches,
pain, and purulent discharge or crusting;
or (b) three or more incapacitating
episodes per year of sinusitis requiring
prolonged (lasting four to six weeks)
antibiotic treatment, or; more than six
non-incapacitating episodes per year of
sinusitis characterized by headaches,
pain, and purulent discharge or crusting;
or (c) near constant sinusitis
characterized by headaches, pain, and
tenderness of the affected sinus, and
purulent discharge or crusting after
repeated surgeries. For purposes of this
examination, an incapacitating episode
means one that requires bed rest and
treatment by a physician. Additionally,
the examiner should indicate whether the
veteran has undergone radical surgery for
his sinusitis and now has chronic
osteomyelitis.
The rectum and anus examiner should
provide specific clinical findings as to
whether the veteran's hemorrhoids are
best characterized as (a) mild or
moderate; (b) large or thrombotic,
irreducible, with excessive redundant
tissue, evidencing frequent recurrences;
or (c) with persistent bleeding and with
secondary anemia, or with fissures.
5. If the veteran fails to report to any
scheduled examination(s), the RO must
obtain and associate with the claims file
(a) copy(ies) of any notice(s) of the
date and time of the examination(s) sent
to the veteran by the pertinent VA
medical facility.
6. To help avoid future remand, the RO
must ensure that the requested actions
have been accomplished (to the extent
possible) in compliance with this REMAND.
If any action is not undertaken, or is
taken in a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
7. After completing the requested
actions, and any additional notification
and/or development deemed warranted, the
RO should adjudicate the veteran's claims
for initial, compensable ratings for
chronic sinusitis and for hemorrhoids, in
light of all pertinent evidence (to
include that submitted in February 2006)
and legal authority. For each
disability, the RO should document its
continued consideration of whether
"staged rating," pursuant to Fenderson,
cited to above, is warranted.
8. If any benefit sought on appeal
remains denied, the RO should furnish to
the veteran and his representative an
appropriate SSOC that includes clear
reasons and bases for all determinations,
and afford them the appropriate time
period for response before the claims
file is returned to the Board for further
appellate consideration.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may
furnish additional evidence and/or argument during the
appropriate time frame. See Kutscherousky v. West, 12 Vet.
App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996);
Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of the appeal. 38 C.F.R.
§ 20.1100(b) (2006).